Scottish Court of Session Decisions

This is an application for the removal of Alexander Campbell, Saltcoats, from the office of trustee

Page: 27↓

under the settlement of David Elles, broker in Saltcoats. Mr Elles left his estate, which consisted of some small houses, shop goods, and household furniture, to three trustees, of whom Mr Campbell is now the only survivor. The trustees were directed, after payment of debts, funeral expenses, &c., to pay over the whole produce of the estate to the truster's widow for the support of herself and her children; but in the event of her entering into a second marriage she was to receive only an annuity of £5, and the remainder of the produce of the estate was to be paid over to the truster's children for their maintenance. Mr Elles died in 1853, leaving four children, all in pupillarity, to whom the trustees were nominated by Mr Elles tutors and curators. From 1853 to 1857 the trustees allowed Mrs Elles to carry on her husband's business, and to draw the rents of the houses. But in 1857 she was married to Edward Magee, The two surviving trustees then arranged that as the children were all young, and as the estate was insufficient for their support, they should continue to live with their mother and Mr Magee, they having agreed to maintain the children on being allowed to draw the rents, which, it was stated, did not, after paying repairs and taxes, yield more than about £20. This arrangement was made by the trustees, not only as such, but also in their capacity of tutors and curators. The children lived with Mr Magee under this arrangement till about a year ago, and they now applied for Mr Campbell's removal on the ground that he had been guilty of improper conduct in culpably and wrongously allowing Mr Magee to uplift the rents instead of handing them over to them.

The Court to-day refused to allow a proof of the petitioners' averments, holding that, read in the light of the trustees' minutes, they were not sufficient to justify the trustee's removal. It was obvious that the trustees had no object as testamentary trustees to do anything that was not for the best interests of the estate and the children themselves. Of the prudence of what had been done it was not for the Court to judge, as the trustees were better able than they were to form an opinion on that matter.